CHAPTER XXVI.

POWERS OF CONGRESS — INTERNAL IMPROVEMENTS.

§ 1267. ANOTHER
question, which has for a long time agitated the public councils of the nation,
is, as to the authority of congress to make roads, canals, and other internal
improvements.

§ 1268. So far, as regards the right to
appropriate money to internal improvements generally, the subject has already
passed under review in considering the power to lay and collect taxes. The
doctrine there contended for, which has been in a great measure borne out by the
actual practice of the government, is, that congress may appropriate money, not
only to clear obstructions to navigable rivers; to improve harbours; to build
breakwaters; to assist navigation; to erect forts, light-houses, and piers; and
for other purposes allied to some of the enumerated powers; but may also
appropriate it in aid of canals, roads, and other institutions of a similar
nature, existing under state authority. The only limitations upon the power are
those prescribed by the terms of the constitution, that the objects shall be for
the common defence, or the general welfare of the Union. The true test is,
whether the object be of a local character, and local use; or, whether it be of
general benefit to the states. 1 If it
be purely local, congress cannot constitutionally appropriate money for the
object. But, if the benefit be general, it matters not, whether in point of
locality it be in one state, or several; whether it be of large or of small
extent; its nature and character determine the right, and congress may
appropriate money in aid of it; for it is then in a just sense for the general
welfare.

§ 1269. But it has been contended, that the
constitution is not confined to mere appropriations of money; but authorizes
congress directly to undertake and carry on a system of internal improvements
for the general welfare; wherever such improvements fall within the scope of any
of the enumerated powers. Congress may not, indeed, engage in such undertakings
merely because they are internal improvements for the general welfare, unless
they fall within the scope of the enumerated powers. The distinction between
this power, and the power of appropriation is, that in the latter, congress may
appropriate to any purpose, which is for the common defence or general welfare;
but in the former, they can engage in such undertakings only, as are means, or
incidents to its enumerated powers. Congress may, therefore, authorize the
making of a canal, as incident to the power to regulate commerce, where such
canal may facilitate the intercourse between state and state. They may authorize
light-houses, piers, buoys, and beacons to be built for the purposes of
navigation. They may authorize the purchase and building of custom-houses, and
revenue cutters, and public warehouses, as incidents to the power to lay and
collect taxes. They may purchase places for public uses; and erect forts,
arsenals, dock-yards, navy-yards, and magazines, as incidents to the power to
make war.

§ 1270. For the same reason congress may
authorize the laying out and making of a military road, and acquire a right over
the soil for such purposes; and as incident thereto they have a power to keep
the road in repair, and prevent all obstructions thereto. But in these, and the
like cases, the general jurisdiction of the state over the soil, subject only to
the rights of the United States, is not excluded. As, for example, in case of a
military road; although a state cannot prevent repairs on the part of the United
States, or authorize any obstructions of the road, its general jurisdiction
remains untouched. It may punish all crimes committed on the road; and it
retains in other respects its territorial sovereignty over it. The right of soil
may still remain in the state, or in individuals, and the right to the easement
only in the national government. There is a great distinction between the
exercise of a power, excluding altogether state jurisdiction, and the exercise
of a power, which leaves the state jurisdiction generally in force, and yet
includes, on the part of the national government, a power to preserve, what it
has created. 2

§ 1271. In all these, and other cases, in
which the power of congress is asserted, it is so upon the general ground of its
being an incidental power; and the course of reasoning, by which it is
supported, is precisely the same, as that adopted in relation to other cases
already considered. It is, for instance, admitted, that congress cannot
authorize the making of a canal, except for some purpose of commerce among the
states, or for some other purpose belonging to the Union; and it cannot make a
military road, unless it be necessary and proper for purposes of war. To go over
the reasoning at large would, therefore, be little more, than a repetition of
what has been already fully expounded. 3
The Journal of the Convention is not supposed to furnish any additional lights
on the subject, beyond what have been already stated. 4

§ 1272. The resistance to this extended
reach of the national powers turns also upon the same general reasoning, by
which a strict construction of the constitution has been constantly maintained.
It is said, that such a power is not among those enumerated in the constitution;
nor is it implied, as a means of executing any of them. The power to regulate
commerce cannot include a power to construct roads and canals, and improve the
navigation of water-courses in order to facilitate, promote, and secure such
commerce, without a latitude of construction departing from the ordinary import
of the terms, and incompatible with the nature of the constitution.
5 The liberal interpretation has been
very uniformly asserted by congress; the strict interpretation has not
uniformly, but has upon several important occasions been insisted upon by the
executive. 6 In the present state of the
controversy, the duty of forbearance seems inculcated upon the commentator; and
the reader must decide for himself upon his own views of the subject.

§ 1273. Another question has been made, how
far congress could make a law giving to the United States a preference and
priority of payment of their debts, in cases of the death, or insolvency, or
bankruptcy of their debtors, out of their estates. It has been settled, upon
deliberate argument, that congress possess such a constitutional power. It is a
necessary and proper power to carry into effect the other powers of the
government. The government is to pay the debts of the Union; and must be
authorized to use the means, which appear to itself most eligible to effect that
object. It may purchase, and remit bills for this object; and it may take all
those precautions, and make all those regulations, which will render the
transmission safe. It may, in like manner, pass all laws to render effectual the
collection of its debts. It is no objection to this right of priority, that it
will interfere with the rights of the state sovereignties respecting the dignity
of debts, and will defeat the measures, which they have a right to adopt to
secure themselves against delinquencies on the part of their own revenue or
other officers. This objection, if of any avail, is an objection to the powers
given by the constitution. The mischief suggested, so far as it can really
happen, is the necessary consequence of the supremacy of the laws of the United
States on all subjects, to which the legislative power of congress extends.
7

§ 1274. It is under the same implied
authority, that the United States have any right even to sue in their own
courts; for an express power is no where given in the constitution, though it is
clearly implied in that part respecting the judicial power. And congress may not
only authorize suits to be brought in the name of the United States, but in the
name of any artificial person, (such as the Postmaster-General, 8
) or natural person for their benefit. 9
Indeed, all the usual incidents appertaining to a personal sovereign, in
relation to contracts, and suing, and enforcing fights, so far as they are
within the scope of the powers of the government, belong to the United States,
as they do to other sovereigns. 10 The
right of making contracts and instituting suits is an incident to the general
right of sovereignty; and the United States, being a body politic, may, within
the sphere of the constitutional powers confided to it, and through the
instrumentality of the proper department, to which those powers are confided,
enter into contracts not prohibited by law, and appropriate to the just exercise
of those powers; and enforce the observance of them by suits and judicial
process. 11

§ 1275. There are almost innumerable cases,
in which the auxiliary and implied powers belonging to congress have been put
into operation. But the object of these Commentaries is, rather to take notice
of those, which have been the subject of animadversion, than of those, which
have hitherto escaped reproof, or have been silently approved.

§ 1276. Upon the ground of a strict
interpretation, some extraordinary objections have been taken in the course of
the practical operations of the government. The very first act, passed under the
government, which regulated the time, form, and manner, of administering the
oaths prescribed by the constitution, 12
was denied to be constitutional. But the objection has long since been
abandoned. 13 It has been doubted,
whether it is constitutional to permit the secretaries to draft bills on
subjects connected with their departments, to be presented to the house of
representatives for their consideration. 14
It has been doubted, whether an act authorizing the president to lay, regulate,
and revoke, embargoes was constitutional. 15
It has been doubted, whether congress have authority to establish a military
academy. 16 But these objections have
been silently, or practically abandoned.

5. President Madison's Message. 3d
March, 1817; 4 Elliot's Debates, 280, 281; President Monroe's Message, 4th May,
1822, p. 22 to 35; President Jackson's Message, 27th May, 1830; 4 Elliot's
Debates, 333, 334. 335; 1 Kent's Comm. Lect. 12, p. 250, 251; 4 Elliot's
Debates, 291, 292, 354, 355; Sergeant on Constitution, ch. 28, [ch. 30 ;] 4
Jefferson's Corresp. 421. — President Monroe, in his elaborate Exposition
accompanying his Message of the 4th of May, 1822, denies the independent right
of congress to construct roads and canals; but asserts in the strongest manner
their right to
appropriate money to such objects. His reasoning for the latter is
thought by many to be quite irresistible in favour of the former. See the
message from page. 35 to page 47. One short passage may be quoted. "Good
roads and canals will promote many very important national purposes. They will
facilitate the operations of war; the movements of troops; the transportation of
cannon, of provisions and every warlike store, much to our advantage, and the
disadvantage of the enemy in time of war. Good roads will facilitate the
transportation of the mail, and thereby promote the purposes of commerce and
political intelligence among the people. They will, by being properly directed
to these objects, enhance the value of our vacant lands, a treasure of vast
resource to the nation." This is the very reasoning, by which the friends
of:. the general power support its constitutionality.